Missing Discussions at Center of Union COVID Dispute

Written by Daniel Standing, LL.B., Content Editor, First Reference Inc.

The Supreme Court of British Columbia rendered a decision (2024 BCSC 55 (CanLII)) on judicial review which looked at the employer’s choice to implement a COVID-19 vaccination policy, and whether, under the Labour Relations Code, it was obligated to enter into discussions with the union first. The case provides employers with insight into the difficulty of overturning a tribunal’s decision.

Background

The workplace was a provincially run rapid transit company. The Court considered a union’s petition for judicial review of a decision by the British Columbia Labour Relations Board regarding the interpretation of s. 54 of the Labour Relations Code in relation to a mandatory vaccination policy implemented by the employer. The dispute centered around whether the policy triggered s. 54 of the LRC, which requires employers to give notice and engage in discussions with the union when introducing measures affecting the terms, conditions, or security of employment of a significant number of employees covered by a collective agreement.

The union argued that the policy affected employment conditions and thus should have triggered s. 54, while the employer contended that the policy was akin to workplace rules and did not require such notice. The original decision by the Board found that s. 54 applied to the policy, but a reconsideration panel later overturned this decision, concluding that the policy did not fall under s. 54.

The Court summarized the arguments of both parties and the original decision, which found that the policy did indeed trigger s. 54 because it required employees to undergo a medical procedure and disclose confidential medical information, leading to organizational changes in the workforce. However, the reconsideration panel, in the majority decision, disagreed and found that the policy was directed toward individual behavior and did not constitute a significant change triggering s. 54. It reasoned that other workplace policies, such as sick leave policies, also require employees to disclose medical information and thus the policy in question was not unique.

In dissent, Associate Chair Matthews interpreted the statute differently, concluding that the policy fell within the class of employer conduct subject to negotiation and thus should have been covered by s. 54.

Overall, the Court reviewed the arguments, the original decision, and the reconsideration decision, ultimately granting deference to the majority decision of the Board, which found that the policy did not trigger s. 54.

The Court’s decision

Justice Devlin began the analysis by stating the applicable standard of review was that of patent unreasonableness. In other words, this highly deferential standard permits the original decision to stand unless it is clearly irrational or suffers from reasoning so flawed it affects the decision as a whole. If, on the other hand, a rational line of reasoning could support the conclusion, or if a defect is a minor one, then the decision must be allowed to stand.

With that standard in mind, the Court dismissed the application for judicial review put forward by the union. The Court addressed two main arguments. First, regarding the Board’s reasoning on the application of s. 54, the union claimed the majority’s decision stemmed from a misunderstanding of the original decision. However, the Court found no merit in this assertion, emphasizing that the majority’s analysis was comprehensive and contextually sound.

Second, concerning the statutory interpretation of s. 54, the union argued the majority failed to conduct a meaningful analysis. Despite this, the Court disagreed, stating the majority engaged in a thorough interpretation consistent with legal principles, having considered the legislative history and applicable jurisprudence. Consequently, the Court concluded the majority’s decision was not patently unreasonable and dismissed the union’s application for judicial review without addressing other arguments.

Key takeaway

It’s really hard to overturn a decision for being patently unreasonable, particularly when the decision maker lays out their thinking in a way that makes rational sense and aligns with the law. This case shows how parties’ reasonable perspectives may differ, but overturning a tribunal’s decision often takes more than a different point of view.